Harvard P2P lawyer: file-swapping is fair use—no, really!

Not content to argue that massive damage awards against P2P file-swappers are …

Is Harvard Law professor Charlie Nesson crazy? As Nesson himself admits, "this does seem to be a question on many people's minds."

In our recent conversation with Nesson, the professor said he hopes to turn the Joel Tenenbaum P2P file-swapping case into a wide-ranging discussion on copyright. But a set of newly published e-mails indicate that Nesson wants to go further than anyone—including the most prominent "free culture" academics—previously suspected. Not content to argue that massive statutory damages are unconstitutional in such cases, Nesson plans to press an audacious claim: noncommercial P2P file-swapping is "fair use" and thus totally legal.

This week, Professor Nesson published to his blog a batch of private e-mail correspondence about his strategy in the case. In the e-mails, he lays out his plan of attack. "Fair use" is not so much "defined" in US copyright law as it "bounded" by a set of four questions that can be applied to any particular use of copyrighted material to see if the use is allowed without permission. The questions ask whether the new use is "transformative," whether it uses a part of the original work or the whole thing, what the effect of the use is on the future market for the original, and what sort of work the original piece was (published or unpublished? factual biography or fictional novel?).

Using the test, even noncommercial file-sharing would seem to fail, since it is is no way transformative, copies the entire song in question, and seems to have at least some negative effects on the market for that song. But Professor Nesson believes that "fair use" as a concept goes beyond the Copyright Act. "Fair use is recognized as a common law, perhaps a constitutional concept, not defined by but merely recognized and continued by the statute (Sony, Harper); that the statutory four factors are illustrative and not exhaustive; that analysis must be case by case; and the question is a jury issue."

The strategy then is to seek a jury trial and convince the jurors that fair use goes far beyond the description in US law. Assuming the jury buys this argument, Nesson can then tap into a basic sense of fairness to claim that a federal trial with the potential of $150,000 in damages per song is unfair in a broad sense, especially when Joel was (allegedly) a noncommercial P2P user back in 2003, when rightsholders were still dragging their feet in "licensing commercial alternatives for kids to buy single songs in digital downloads."

In the attempt to codify this notion of "fairness" into a principle, Nesson comes up with this: "Seems to me to be an understandable principle that it's okay to consume and share nonrivalrous good which are available on the net for free."

Experts puzzled

Unfortunately, no one else appears to be buying it, not even the people Nesson and his students hope to call as expert witnesses at trial.

Stanford professor Lawrence Lessig said that he was "surprised if the intent is to fight this case as if what joel did was not against the law. of course it was against the law, and you do the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what he did. It doesn't."

Wendy Seltzer, who heads up the Chilling Effects website and served as an EFF staff attorney, was "puzzled" by the fair use argument. "I fear that we do damage to fair use by arguments that stretch it to include filesharing—weakening our claims to fair use even for un-permissioned transformations," she wrote. "I am much more comfortable disagreeing with the law than claiming at this point in time that it already excuses filesharing."

Terry Fisher, who heads Harvard's Berkman Center for Internet & Society, pointed out that P2P filesharing would likely fail the four factors test. "This is not to suggest, of course, that it's sensible for the legal system to be set up in such a way as to enable and encourage the RIAA to go after people like Joel," he added. "I devoted much of a book to arguing that it’s not—and I'm happy to testify to that effect. But the fair use doctrine does not, in my view, provide a plausible vehicle for reform."

The discomfort with strategy extends even to Nesson's own students, who are doing much of the research and writing. Ray Bilderback, who is writing the "disclosures" about expert witness testimony, wrote that "all of this looks very bad from my perspective. I think that introducing our experts at this late stage to the very novel argument that we intend to raise at trial—an argument which has no real basis in case law or moderate academic scholarship—is a blunder that could have very serious consequences. At this point, I have no idea what our disclosures will look like. And they have to be filed TOMORROW. Bad, bad, bad. We should have been working on this for weeks rather than days."

Given the general craziness of the case already, one is tempted to say this is simply par for the course. But posting internal strategy e-mails wasn't enough for Nesson, who also uploaded a lengthy audio clip of his wife, Fern, "twittering into my life." Fern's "twittering" takes the form of a (half-joking?) diatribe against Bilderback ("he annoys me so much," "the guy is such a schmuck," "he's my enemy already,") and a rant against those who disagree with Nesson's reading of the law ("then they're going to have to go back to the fucking cases and really consider it instead of spouting all this shit that they're teaching their students").

It's all rather... extraordinary, extraordinary enough that Nesson has now taken down the e-mails from others. The Internet never forgets, however; not that Nesson is any way bothered by posting such material. Throughout this case, he has attempted a radical openness that has (to date) irritated the judge, music industry lawyers, and even those lawyers who support his position. But for those who want to see what goes into a federal case and the strategy that a noted Harvard Law prof pursues as he preps for trial, Nesson may be the ideal litigator. "Billion Dollar Charlie" certainly doesn't hold back, even on potentially embarrassing material.

48 Reader Comments

There is no freaking way it's fair use. He knows that fair use is ambiguous enough that a judge always has to look at a specific use to determine if it's fair use. So he's playing the gray area of the law to try to prove such an audaciously nonsensical idea.

Only in a socialist paradise where money doesn't exist it would be true. And that's about it.

Using the test, even noncommercial file-sharing would seem to fail, since it is is no way transformative, copies the entire song in question, and seems to have at least some negative effects on the market for that song.

It also may have some positive effects on the market for that song (i.e. "try and buy").

Ehhh.. I hate the state of copywrong laws as much as the next person, but isn't what he's suggesting, basically declawing the copyright act? You can say goodbye to the concept of intellectual property if he has his way on that

No; it's outright ending copyright altogether. If you can say that putting copyrighted material on the internet for anyone to download, with specific evidence that it was downloaded, if that's not copyright infringement then what is? Do you have to put it on a physical medium for it to be infringement?

He is not helping. This guy is the same as the RIAA hard-liners, just from the other direction.

How long does this have to drag out before Joel Tenenbaum fires his lawyer and tries to settle. If it made them look worse, they might be willing to settle for less than a college education (what it sounds like they usually ask for).

If this goes on, the RIAA will simply let it go to trial, get $150k per track, and keep Joel as a serf/lackey to collect funds from other P2P "evildoers".

Why is it that these laws only benefit the few that have the money? All these copyright laws are becoming ridiculous. The arguments FOR the laws are becoming ridiculous too... 'People would stop making art' ?? Come on!! <sarcasm> Ohhh, how could anyone survive before these laws came about? It was so boring - nobody wanted to create art </sarcasm> Idiots!

I've got one word for them: Betamax. Think or how many of the four fair use tests that recording live tv for personal use fails: It is not transformative, there is a clear argument that it reduces the demand for video sales, it produces a copy of the whole work, which is never a reference work.According to the rules, the Betamax decision could not have been fair use. But the courts ruled that it was.

If betamax was used as a precedent, then non-commercial file sharing could well be ruled to be fair use. Yes, it's a very long bow, and does twist the mind in strange directions, but it is not as ridiculous as some suggest.

Originally posted by TK:Ehhh.. I hate the state of copywrong laws as much as the next person, but isn't what he's suggesting, basically declawing the copyright act? You can say goodbye to the concept of intellectual property if he has his way on that

I like this. People should be able to see all that is going on. I'm fairly certain that most have no idea how this kind of trial goes on.

On the matter of fair use well it's his way to try and force the discussion about the copyright. After all it's not some God mandated right but just a law that has been distorted by hard loby work from a single rich industry (strange thing is that they have a shit load of pull in both US and EU but are when you get down to it real tiny compared to consumer electronics industry, telecom, IT and so on but still they are the ones making the ruls).

Originally posted by moodav:Who made these laws anyways? I didn't sign up for them. Did you?

Why is it that these laws only benefit the few that have the money? All these copyright laws are becoming ridiculous. The arguments FOR the laws are becoming ridiculous too... 'People would stop making art' ?? Come on!! <sarcasm> Ohhh, how could anyone survive before these laws came about? It was so boring - nobody wanted to create art </sarcasm> Idiots!

Do you like movies? Do you know how much many of them cost to produce? Someone make a movie, yet anyone could "pirate" it... the movie producers would be very unlikely to recoupe their investment.

How about video games or software? No copyrights means that they have no guarantee that they'll sell anything (why buy when you can legally copy to your heart's content).

Sure there was always "art" and there always will be... but you have to consider commercial "art" (particularly of the digital, mass market variety).

And, no, these laws don't just benefit the few who have money, they benefit a whole lot of people and lots of industries which employ lots and lots of people... and those people contribute to the economy.

Originally posted by robbak: there is a clear argument that it reduces the demand for video sales

I'm pretty sure the video market didn't exist at the time. Afterall, the market of Betamax owners was so small and new.

The point is that it would seem "obvious" that the ability to record and copy videos would kill attempts to sell pre-recorded videos. Yet, VCRs were allowed, and despite that, there is a video market today (well, DVD market now).

In the same light, it's "obvious" that allowing free non-commercial downloading of anything on the internet would kill attempts to sell downloadable things on the internet. Maybe it's the same type of "obvious."

From the article:it's okay to consume and share nonrivalrous good which are available on the net for free.

I can't think of any downloadable or sharable goods on the internet that are Rivalous goods (economic definition: Rival goods are goods whose consumption by one consumer prevents simultaneous consumption by other consumers).

So in reality he is saying that all downloadable internet content would be free to download? Yeah, I can see why reasonable people think it's going too far.

Fair use is really defined by the case law which has come about through various copyright lawsuits. The judges decided that certain uses were okay, but others were not. As such it is a bit nebulous. A future court case could expand the notion of what is considered fair use or contract it.

The idea that the same rules which applied to cassette tape or disc swapping can be applied to P2P is where advocates of fair use get into trouble IMO. I can reasonably make a mix album for my sister and argue it is a fair use. If I transmit that album over the Internet to her rather than burning it to disc, there is littler difference. However, if I make the album available as a download from my public Web site for everyone to enjoy then something different is happening. Now it feels like I am distributing my album as a non-commercial venture, rather than just giving a copy to a friend. The idea that everyone who visits my Web site is friend-for-a-moment doesn't really cut. It's rather as if I burned a thousand CDs and started distributing them.

Professor Charlie Nesson may have a point here. It seems to me we should be consistent in all this. You can borrow books, CDs, and DVDs from the local library as much as you want. In fact, if all people got their music, books, and movies this way things would turn out very badly for all these publishers. Years ago before CDs, people used to make tapes from records and even give them as gifts to each other.

I read a comment (I can't find it, but it was about newspaper publishing that is relevant here as well) that said something to the effect that publishers have to decide whether they are selling paper and using the news as the incentive for people to buy the paper or they are selling news and giving away the paper to get people to read it.

Over the years the music industry seemed to want me to buy the same material in four different ways. Now that one can get the music untethered to any physical object, they start getting fussy about it.

If they are selling me the music, one should be able to able to share it.

From the article:it's okay to consume and share nonrivalrous good which are available on the net for free.

I can't think of any downloadable or sharable goods on the internet that are Rivalous goods (economic definition: Rival goods are goods whose consumption by one consumer prevents simultaneous consumption by other consumers).

So in reality he is saying that all downloadable internet content would be free to download? Yeah, I can see why reasonable people think it's going too far.

So you are saying that if I subscribe to WSJ and send a copy of article to a friend I am breaking the law?

Originally posted by Pete:So you are saying that if I subscribe to WSJ and send a copy of article to a friend I am breaking the law?

I'm afraid I don't see the connection between my statement and your question. So no, I don't think I'm saying that at all.

Now, as to whether or not you're breaking the law, that would depend on the fair use factors listed in the article, but I would guess that most courts would find copying a single article from the whole Journal as defensible by fair use.

When I first heard about this case, I was very happy. Finally, legal big guns would be in the hands of the accused! With every passing article about this guy, and especially the interview with him, I feel more and more sad. Joel is going to lose, and big. The precident is going to damn every other case. All because some crazy old professor, who openly admits to having never been a trial lawyer, wanted to turn the courtroom into a showroom.

I am all for academic openness and technology reform, but I can't believe that this "teacher" is spouting this kind of nonsense. Not only that, but he is a professor at one of the most prestigious law schools in the country. I quit college for the simple reason is that they try to fill your head with useless crap. Like the Cultural Pluralism class that told me I am white and white people have caused all the problems for the other races on the planet, therefore I am a bad person. College doesn't make you smarter, it just proves you know how to waste thousands of dollars efficiently. At least one of his students has simple common sense. You can't teach that. Too bad Mr.Nesson isn't working for the other team, then maybe Joel would have a chance at winning.

The key word in the article is Harvard Law **professor**. Unless he's in the trenches fighting the battles, instead of telling his entourage to, well it's all just theory--then again it's law, so it's just someone's opinion.

i agree with the lawyer. and i like the point one of the first commenters made (well, implied): scrapping the intellectual property laws might not be a bad thing. i see such laws being used mostly by entities like drug companies to jack up prices at the expense of the sick, by media conglomerates at the expense of pretty much everyone (and not passing much of this along to artists).

people invent and create because that's what the mind does. long before there were any fair use laws--commonlaw or otherwise--humans were making art and inventing things. and who benefited? we all did, and we all continue to do so. even if there has been a period of necessity for these laws, i think the internet is changing the game such that they'll generate endless litigation and restrictions that don't do much for most people, and definitely make the world a worse place to live.

Originally posted by Zeebee:Do you like movies? Do you know how much many of them cost to produce? Someone make a movie, yet anyone could "pirate" it... the movie producers would be very unlikely to recoupe their investment.

People already can and do "pirate" whatever they want. And movie producers still make movies. You FAIL.

quote:

How about video games or software? No copyrights means that they have no guarantee that they'll sell anything (why buy when you can legally copy to your heart's content).

Games often fail and have no significant sales - they same games nobody wants to pirate. What makes you think anybody has a guarantee they'll sell anything? You FAIL.

quote:

And, no, these laws don't just benefit the few who have money, they benefit a whole lot of people and lots of industries which employ lots and lots of people... and those people contribute to the economy.

Yeah, the movies that are made in Sydney or New Zealand or Poland or where ever are contributing shitloads to your economy. The US has the most uneven distribution of wealth in the developed world, and those with money ensure the laws keep it that way. You FAIL.

Originally posted by iquanyin:i agree with the lawyer. and i like the point one of the first commenters made (well, implied): scrapping the intellectual property laws might not be a bad thing. i see such laws being used mostly by entities like drug companies to jack up prices at the expense of the sick, by media conglomerates at the expense of pretty much everyone (and not passing much of this along to artists).

people invent and create because that's what the mind does. long before there were any fair use laws--commonlaw or otherwise--humans were making art and inventing things. and who benefited? we all did, and we all continue to do so. even if there has been a period of necessity for these laws, i think the internet is changing the game such that they'll generate endless litigation and restrictions that don't do much for most people, and definitely make the world a worse place to live.

Ok, you dare us and you say that we'd all be better of without any copyright laws. And taking music as an example, you say that little of the money goes to the artist. How much money would go to them if there weren't copyright?! Not only sharing songs would be legal, it would also be legal for any record company to sell the music and not give the artist any money!

And about the times of centuries ago, before we had laws like this? It was very simple. Great musicians worked for the richest, the dukes, the kings, the church. The inventors? The same. Someone makes an important technological advancement and the ruler says that he is the only one in the realm who has the right to produce what he discovered (thus motivating the brainiac not to go and tell other rulers about it and securing a technological advantage to his country).

"People invent and create because that's what the mind does. long before there were any fair use laws--commonlaw or otherwise--humans were making art and inventing things. and who benefited? we all did, and we all continue to do so." What's that even supposed to mean?! That a smart man's brain is like a wild fruit anyone is welcome to pick and enjoy? Well you know what? People work and toil because that's what the body does, so go and do thenty push-ups and if that doesn't clear your head try working on a construction site pro bono, and we'll all benefit from that too, you know.

This news story may be an April's fools and the current penalties for copyright infringement may be excessive, but the idea of abandoning any copyright can only come from the one who will never have any intelectual property of one's own.

Does 'common law' even exist as a concept under the US legal system? Isn't it totally subsumed by the constitution? Surely Common Law is merely an artifact of unreformed European legal systems (the UK is a prime example) that have failed to have the courage to codify themselves on a constitutional basis?

And yes, E_Nigma, you're absolutely right in pointing out that the primary purpose of copyright is to protect artists from being ripped-off by commercial interests. Many people don't realise that the real problem with copyright is a more general problem with art, in which the costs of promoting and disseminating the artwork dwarf the actual return seen by the artist.

Ok, you dare us and you say that we'd all be better of without any copyright laws. And taking music as an example, you say that little of the money goes to the artist. How much money would go to them if there weren't copyright?! Not only sharing songs would be legal, it would also be legal for any record company to sell the music and not give the artist any money!

Luis L'Amour, the popular author of Western novels, ran into this problem. Here is how he and his publisher dealt with the matter, apparently with pretty good success.

Some of his older work (if I recall correctly, generally published in defunct pulp magazines) had either somehow fallen out of copyright, or maybe were bought for a song by the defunct magazine's purchasers. L'Amour's stories were being reprinted and sold by this new publisher, who was not inclined to honor the previous understanding that had existed with the previous owner, and refused to pay L'Amour any consideration whatsoever.

L'Amour and Bantam Books fought back, by reprinting their own editions, with additional material, and a prominent notice on the cover that these were the authorized, author-approved editions. Inside the cover was a more detailed explanation of the situation, and a plea to not support the scuzzy publishing house at the expense of the author and legitimate publisher. This campaign was so successful, that I never even saw one of the actual "pirated" editions.

Originally posted by Dark Empath:Yeah, the movies that are made in Sydney or New Zealand or Poland or where ever are contributing shitloads to your economy. The US has the most uneven distribution of wealth in the developed world, and those with money ensure the laws keep it that way. You FAIL.

Oh ya, there are just TONS of torrents out there for the illegal download of Polish romantic comedies.

Are you really stupid enough to believe that people are going to spend tens of millions of dollars making movies just cause they want to be creative and without expectation of remuneration?

The average cost of a hollywood movie is apparently around $100M (according to the Motion Picture Assoc). I don't know about you, but I actually like movies like The Watchmen, and I guarantee you that nobody is going to make that in their basement as a hobby.

Originally posted by Dark Empath:Yeah, the movies that are made in Sydney or New Zealand or Poland or where ever are contributing shitloads to your economy. The US has the most uneven distribution of wealth in the developed world, and those with money ensure the laws keep it that way. You FAIL.

Oh ya, there are just TONS of torrents out there for the illegal download of Polish romantic comedies.

Are you really stupid enough to believe that people are going to spend tens of millions of dollars making movies just cause they want to be creative and without expectation of remuneration?

The average cost of a hollywood movie is apparently around $100M (according to the Motion Picture Assoc). I don't know about you, but I actually like movies like The Watchmen, and I guarantee you that nobody is going to make that in their basement as a hobby.

Meh the free trade of stuff is very equatable with friends shearing the sht they buy, you can't label it all illicit as it dose not real damage since people still consume and we are still a consumer based society so people shearing stuff for the cost of their net connection dose no real world damage because its not taking money from the market just redistributing so consumers can support more of what they like.

Now for ad rev and blatant pay for services even most donational services they fall into illicit profit stuff that's the same as bootlegging and is very enforceable without changing the law to make to further rape whatever rights the common citizen has left.

IMO the CP owner dose not have the right to block the free distribution of information, its detrimental to society to give them so much power but illicit profit is something that can easily be managed. And the trade off most would be willing to give them for it are infinate CP so CP owners can trade and sell profit right based CP all they want(since its based on profit, non profit and true free providers will be able to give stuff away allow people to either attain stuff they never will afford or boyycott the industry by not buying into to the sht shoveled at us) that and making illicit profit eatable to drug sales where property is sized is a way to do it without creating fascist rules to ensure the corporate state maintains the status quo....

Originally posted by TK:Ehhh.. I hate the state of copywrong laws as much as the next person, but isn't what he's suggesting, basically declawing the copyright act? You can say goodbye to the concept of intellectual property if he has his way on that

I agree he many be in left field, but prior to Napster, lending your friend the CD you just bought wasn't illegal. Now it is. IANAL, but either the law has changed since Napster or the interpretation of the law has changed. I believe the interpretation has changed in light of internet distribution, and it's changed with little thought of the consequences. In the past, the content industry couldn't go after you until you tried to profit (resell, mix and sell, copy and sell, sell advertising on your mp3 website). Maybe that is something he is going to get at. ::shrug::

Originally posted by TK:Ehhh.. I hate the state of copywrong laws as much as the next person, but isn't what he's suggesting, basically declawing the copyright act? You can say goodbye to the concept of intellectual property if he has his way on that

I agree he many be in left field, but prior to Napster, lending your friend the CD you just bought wasn't illegal. Now it is. IANAL, but either the law has changed since Napster or the interpretation of the law has changed. I believe the interpretation has changed in light of internet distribution, and it's changed with little thought of the consequences. In the past, the content industry couldn't go after you until you tried to profit (resell, mix and sell, copy and sell, sell advertising on your mp3 website). Maybe that is something he is going to get at. ::shrug::

And the problem they want absolute control over distribution and the only way for them to do that is to have the rights of law enforcement to spy on trace and then be allowed to take people to court.

Its not a good thing for anyone, CP needs to get become focused on profit based infringement that is more likely to be a real crime they wont have to waste time trumping up.